Durham-in-Wonderland

Friday, July 18, 2014

When I first started writing about the lacrosse case, at a
joint historians’ blog called Cliopatria, I did so in reaction to the Group of 88 statement. Then (and now) I considered the statement an indefensible
betrayal by professors of their own school’s students, an action that
contradicted many of the basic values on which American higher education rests.

Absent the Group statement, I doubt I would have noticed the
case at all—in spring 2006, I didn’t even know that Duke had a lacrosse team,
much less know any of its members. But as I remained interested in the case, the
editor of Cliopatria suggested I spin off into a focused blog. When I did so,
in August 2006, I envisioned a six-week effort, which would perhaps provide
background for people interested in the case from the 60 Minutes broadcast, which I had heard was scheduled for early
October. Instead, a flurry of events—the delay of the broadcast, then the
November 2006 election, the Meehan hearing, the Nifong ethics charges, the
culmination of the criminal case, and the two Nifong hearings—sustained the
blog on a daily basis (the blog had more than 1000 posts during its first 14
months) through September 2007.

I stopped daily posts in fall 2007, and since then have averaged
only about a post a week. I extended the blog to follow the civil cases, which
struck me as likely to establish important precedents. (They did so, though in
ways that trouble me—suggesting that in the 4th Circuit colleges
have no obligation to enforce the student bulletin or faculty handbook, at least in cases where disfavored groups of students are targeted by powerful faculty interests on campus; and victims
have no grounds for a federal civil rights lawsuit when prosecutors and police conspire to frame innocent
people, provided the police are internally candid about their lack of evidence
and the prosecutor obtains a grand jury indictment.) The civil cases dragged on
for much longer than I had anticipated, largely due to Durham’s high-risk, but ultimately
high-reward, strategy of filing multiple interlocutory appeals to avoid any
discovery.

This delay, ironically, meant that the blog remained active
during two unanticipated but important events.

The first came when Duke employed the civil suit discovery
process to try and obtainmy private correspondence with confidential sources for the book and blog. For
reasons neither the university nor its attorneys ever explained, I was the only
person who covered the case to receive such a subpoena; even UPI co-author Stuart Taylor wasn’t
targeted by Duke. Thanks to excellent representation from my attorney, Patrick
Strawbridge, and assistance from the Reporters Committee for Freedom of the
Press, I resisted the subpoena. A limited setback before a Maine magistrate
judge evaporated in the courtroom of Maine district court judge Brock Hornby,
who peppered the Duke attorneys with questions, eliciting the extraordinary
statement that Duke would be happy for its professors to live under the same
standards the university expected of me. (Unsurprisingly, no member of the
Brodhead administration ever informed Duke faculty members of this new policy,
which would decimate the freedom to research controversial topics at Duke.) In
the aftermath of the hearing, and after the Carrington
settlement, Duke withdrew its subpoena before Hornby could render a
decision. The magistrate judge’s decision subsequently was vacated.

The second significant event occurred with publication of
the revisionist
book by William D. Cohan. In his up-is-down opus, Cohan portrayed Mike
Nifong as victim, “crucified” by the efforts of an amorphous conspiracy that
included defense attorneys, the State Bar, some members of the media, Judge Osmond Smith, the
Disciplinary Hearing Commission, families of the lacrosse players, senior
prosecutors in the North Carolina attorney general’s office, and Northeastern lawyers whose identities he declined to reveal. Cohan reached this startling conclusion not by
interviewing any members of the alleged conspiracy, but instead by speaking to
Nifong at length, and then uncritically accepting the version of events offered
by his chief source, a convicted liar. The result: a book praised by many of
the papers who got the story wrong at the start, and sharply
criticized by virtually every reviewer who knew anything about what occurred in
Durham.

Before doing so, however, allow me to offer three general
reflections:

The Academy

Higher education is perhaps the only product in which
Americans spend tens or even hundreds of thousands of dollars without having
any clear sense of what they are purchasing. Few parents, alumni, legislators,
or prospective students spend much (if any) time exploring the scholarship or
syllabi offered by professors at the school of their choice; they devote even less
effort to understanding hiring patterns or pedagogical changes that have driven
the contemporary academy to an ideological extreme on issues of race, class,
and gender. At most, there seems to be a general—incorrect—impression that
while colleges have the occasional “tenured radical” who lacks real influence
on campus, most professors fall well within the ideological mainstream.

But while most outsiders have neither the time nor the
inclination to challenge faculty on scholarly or curricular matters, the
lacrosse case was different. Here, the relevant facts were public knowledge.
The event was high-profile, and the more evidence that emerged, the less likely
it appeared that a crime occurred. At the least, it was clear by 1 May 2006 that
at least one innocent Duke student (Reade Seligmann) had been indicted.

And yet for dozens of Duke faculty, this evidence appeared
irrelevant. Eighty-eight of them rushed to judgment, signing a statement (whose
production violated Duke regulations in multiple ways) affirming that something
had “happened” to false accuser Crystal Mangum, and thanking protesters (“for
not waiting”) who had, among other things, urged the castration of the lacrosse captains and blanketed the campus with “wanted” posters. As the case to which
they attached their public reputations imploded, Group members doubled down,
with most issuing a second statement promising they would never apologize for
their actions. (Only three Group members ever said they were sorry for signing the
statement, and two of that number subsequently retracted those apologies.) For months,
the Duke administration was either in agreement with the faculty extremists or
cowed by them—or some combination of both.

In this respect, Duke isn’t exceptional: if the
lacrosse case had occurred at another elite university, something like the
Group of 88 probably would have formed there, as well. (Hypothetical Groups at
other schools might not have been quite as large—the effects of ex-president
Keohane and ex-provost Chafe on maximizing race/class/gender hires did have
some additional effect.) Nifong, on the other hand, was unusual.

Prosecutorial misconduct is a blight on the American justice
system, but few prosecutors violate quite as many ethical rules in a single
case as did the disgraced former DA. Of course, Durham’s particular
circumstances accounted at least to some degree for the extent of Nifong’s
perfidy: he had to violate ethical guidelines to create “evidence” of a “crime”
that never occurred; and then he had to violate more ethical guidelines to
create “evidence” to point to the “perpetrators” of this non-existent crime.

It’s worth remembering, however: lots of people seemed quite
untroubled with Nifong’s actions. He did, after all, win the primary election—the
day after Durham voters saw on their TV screens a video of Reade Seligmann at an ATM
machine at the time Nifong claimed a rape was occurring. And he did win the general
election—even after Durham voters were exposed to massive evidence of his
ethical improprieties, thanks to reporting from the N&O and 60 Minutes. Moreover,
Nifong almost managed to bring the case to trial. The State Bar vote to go
ahead with the prosecution before the end of the case passed only by one vote,
with the chair of the relevant committee casting the tie-breaking ballot. If
not for the brilliant cross-examination from Jim Cooney and Brad Bannon, plus
the inability of Dr. Brian Meehan to carry off the conspiracy, would the Bar
have acted when it did?

Despite his apologists’ best efforts to rehabilitate his
reputation, Nifong’s behavior might have had one salutary effect: he now
personifies the position of rogue prosecutor. Journalists, legal commentators,
and the public at large now have a reference point when they hear defense
attorneys speak of the importance of due process, or caution against
prosecutors violating ethical norms. And DA’s inclined to ignore ethics to
advance their political careers will (hopefully, at least) recall Nifong’s
fate.

Media

Excellent coverage of this case came from some quarters of the traditional
media—from the 2006-2008 staff of the Duke Chronicle;
from Joe Neff at the N&O; and
nationally from 60 Minutes and ABC’s
Law and Justice Unit. But the terrible traditional coverage—from the New York Times, the Herald-Sun, op-ed commentators such as Selena Roberts and Eugene
Robinson, and other outlets in the early stages of the case—was terrible
indeed.

The bad work suffered from two problems that reinforced each other. The first comes from the media’s general ideological biases. While not
as left-wing as the typical elite school’s faculty, the media obviously leans
left, especially on issues of race and gender; and in spring 2006, the facts
offered by Nifong seemed for too many too good to be false. So rather than challenging
Nifong’s presentation of the case, the Times, the H-S, and politically
correct commentators and authors served as de facto
stenographers for the prosecutor, uncritically passing along whatever version
of events he happened to be offering at the time.

The second general problem exposed by the case was the media’s
poor coverage of procedure and procedural issues. It’s no coincidence that the
best reporter on this case—Neff—was comfortable with procedure, and that the
worst—Duff Wilson and self-described “serious investigative journalist” William D. Cohan—appeared clueless on procedural matters.

For the media as a whole, covering procedure can be
difficult—it’s often technical, and it doesn’t exactly sell newspapers. But as
the lacrosse case demonstrated, explaining the role of procedure in policy and
legal matters is a critical role that journalists play in society. And while
there’s been some progress in this regard (consider, for instance, the Washington Post partnering in its blogs with
Volokh
Conspiracy or Radley
Balko), as a whole, the media tends to do a poor job at illustrating
procedural matters. Jim
Fallows’ laments about the mainstream newspapers’ frequent failures to
explain the Senate’s filibuster process is a good example of the broader
problem.

-----------------

DIW was a blog of a particular time and place. If the
lacrosse case had occurred a few years earlier, the blog likely never could
have been launched. In the initial months, I relied heavily on primary source
material posted by others (the N&O and
WRAL for discovery documents; the State of North Carolina for various ethics
and election items; Duke and electronic resources for academic matters). As recently
as the late 1990s, this type of material often was not available online, so initially covering
the case from New York or Maine (as I did, most of the time) would not have
been possible

—meaning that I never would have developed the local sources whose willingness to answer questions from me (and not infrequently provide me with tips) helped the blog to break stories.

If the lacrosse case occurred today, on the other hand, the
blog’s reach almost certainly would have diminished; the blog’s biggest
readership days (over 100,000 each day) occurred during the live-blogs of the
Nifong ethics proceedings; most of that information would now be communicated
via twitter, not through live-blogs, which have become passé.

It might well be—as any number of commentators
have contended—that
blogs, at least of this type, will be much less common in the future. (I’ll
still be writing on higher-ed matters, at the Manhattan Institute’s Minding the Campus, and readers can follow me on twitter; obviously my academic work is still on my homepage.) That said, many
of the strengths of a blog—namely, the sense of community from readers and
commenters—aren’t easily replicable on twitter or in other forms. Moreover, the
structure of the blog certainly aided me; over the course of the case, I learned
a lot about criminal procedure, legal ethics, the nature of journalism, and North Carolina issues, courtesy of exchanges with readers, commenters, and other bloggers.

Sunday, July 13, 2014

Some interesting comments in a Wikipedia discussion thread regarding efforts to remove mention of their membership in the Group from Wikipedia bios of Group of 88 members. The evidence regarding Cathy Davidson, author of the infamous N&Oapologia for the Group, is particularly troubling, in that the editor/whitewasher was traced to a CUNY IP on the same day that Davidson began her CUNY service.

Friday, July 11, 2014

Anne Blythe reports in the N&Othat Judge Hudson has said he wants to grant bail to Darryl Howard, whose prosecution, writes Blythe, the judge described “as one of the most 'horrendous' prosecutions he had seen in his 34 years on the bench.” The prosecutor in the case was, of course, disgraced ex-DA Mike Nifong.

As he has deemed Nifong as honorable and quite credible, author William D. Cohan has yet to comment once on the Howard case.

Monday, July 07, 2014

WRAL's Julia Sims is reporting that former Sgt. Mark Gottlieb died on Saturday, apparently of suicide. He had, according to WRAL, been living in DeKalb County, Georgia, where he had worked as a paramedic after leaving the Durham Police. I will post more information if and when it becomes available.

As I wind down the blog after the resolution of the Evans and Carrington lawsuits (I’ll have a closing post next Monday), I thought
it might be useful to check in on some members of the Group of 88. An utter lack of accountability within the academy for those faculty members who abandoned due process (and, in some cases, appeared to violate Duke regulations) was apparent almost from the start in the case, and remains so today.

No fewer than nine Group members were hired away from Duke,
often for more prestigious positions, despite (because of?) their activism in
the Group. Cathy Davidson—author of the Group apologia that invented a spring 2006 that never existed—was the latest, having just joined the faculty at the
CUNY Graduate Center. She joins Grant Farred (Cornell, which got a taste of the contempt for students he had demonstrated at Duke); Houston Baker
(Vanderbilt); Charles Payne (University of Chicago); and Rom Coles (Northern
Arizona, endowed chair) in moving onto greener pastures. Meanwhile, three signatories
who were members of the University Writing Program received full-time,
tenure-track positions—Jason Mahn at Augustana, Matthew Brim at the College of
Staten Island, and Christine Beaule at the University of Hawai’i—while a fourth
(Caroline Light) was appointed to an administrative-teaching position at
Harvard’s women’s studies program.

Several other Group signatories advanced at Duke. Srinivas Aravamudan
currently serves as Duke’s dean of the humanities. Lee Baker is dean of
academic affairs at Trinity College. And Paula McClain is dean of the graduate
school, and vice provost for graduate education. Clearly the role of their
behavior in causing a multi-million dollar settlement was no barrier in the
Group members’ standing at Duke.

Imagine if the lacrosse case had featured a race-baiting DA, on behalf of a white false accuser, going after African-American students to advance his political career. Does anyone believe that professors who
abandoned due process to stand shoulder-to-shoulder with the DA, affirming that
something “happened” to the false accuser, would not have faced professional
repercussions in the contemporary academy?

And then there’s the principal author of the Group
statement, Wahneema Lubiano. Those waiting for her perpetually
“forthcoming” books (Like Being Mugged by
a Metaphor: “Deep Cover” and Other “Black” Fictions; andMessing with the Machine: Politics, Form, and
African-American Fiction) continue to wait; 15 years after Lubiano
advertised their coming appearances, the books remain nowhere to be found.

Lubiano, befitting someone who believes that she
participates in what she calls “public intellectualism,” has sporadically shared her insights via twitter. In February,
for instance, she
revealed that she has spent her “entire adult life addressing the US public’s
murderous imagination when it comes to the lives of black Americans.” As always,
temperate analysis from the tenured professor.

Lubiano hasn’t tweeted in a few months. She doesn’t appear
to be academically active, either. According to her departmental
CV at Duke, the Group of 88 leader has a grand total of . . . one . . .
academic publication in the past six years,
an article entitled, “Affect and
Rearticulating the Racial ‘Un-sayables.’” The four-page essay appeared in
the journal Cultural Anthropology.

(Lubiano appears to be comfortable with
this length; her previous publication, subtitled “An Interview with Wahneema
Lubiano,” also spanned four pages.)

In the event, Lubiano’s recent publication builds off her
work in teaching a first-year seminar at Duke, “Prison, the U.S., and the
Citizen.” The course, according to the Group leader, explores “the inability of
general public discussion—what my students are aware of in abundance but which
they understand as ‘natural’—to accommodate elaborated and unelaborated
discourses for cathected critical engagement, e.g., white supremacy and its
connection to prison.” Lubiano lamented that, in the class, she often ran “up
against the difﬁculty of moving our students from that hegemonic subjectivity to
something more speciﬁcally critical.”

The Duke professor expressed her concern that “what I have
in the classroom” could “best be described as a ﬁerce (albeit inarticulate)
obedient state subject who resists a critique of the state and of prison, a resistance that might be described as
white supremacist common sense.” [emphasis added] Lubiano further contended
that “because of [her students’] resistance to the basics of empathy with
regard to mass incarceration, they’ve taken up the position of aestheticized
white supremacist subject instead.” In other words: parents can spend $50,000 a
year to have Duke faculty suggest that their son or daughter exhibits “white
supremacist common sense.” You’d almost think that Lubiano is a fiction,
invented by David Horowitz or another right-wing critic of the academy to discredit the entire higher-ed enterprise.

As a reminder: Lubiano was hired by Duke on the basis of two
“forthcoming” books that, to date, have never appeared.

Tuesday, July 01, 2014

Now that his publicity tour appears to have ended, I thought
it might be worthwhile to have two short concluding comments on the work of
William D. Cohan. (You can read
all of my Cohan-related posts here.)

Leave aside, for a moment, the obvious: in the United
States, political trials of the type that Cohan seems to have wanted don’t
occur. Instead, when prosecutors (in the lacrosse case, Jim Coman and Mary
Winstead, and through them Attorney General Roy Cooper) believe that the
defendants are actually innocent, the prosecutors have an ethical obligation to
dismiss charges.

But, again, leave aside basic rules of legal ethics. In a
sexual assault trial, at a bare minimum four people speak: the judge, the
prosecutor, the accuser, and the defense attorney. (Obviously in most cases,
more people than four speak.) The defendant might or might not take the stand;
in many cases, for various reasons, the defendant doesn’t testify.

In Cohan’s model of the book-as-trial, author Cohan
functioned as the judge, and he certainly spoke (as, for instance, when he
praised Nifong’s defense, which the State Bar wholly rejected, as “cogent”).
Accuser Crystal Mangum was given the opportunity to speak, in a jailhouse
interview in which she told still more tall tales (that medical staff had to
pull wooden shards from her, that one of the students she falsely accused
carried her to the car). And Nifong was allowed to speak. And speak. And speak.
And speak some more, virtually always without challenge—even though in a real
trial, a prosecutor who bore false witness would be silenced by the judge.

But in William D. Cohan’s “trial,” Judge Cohan never asked the
defense attorneys to speak. He solicited no interviews from Brad Bannon, Jim
Cooney, Joe Cheshire, Wade Smith, or Doug Kingsbery. Nor, when Nifong became the defendant, did Cohan seek to interview the men and women who prosecuted him, either before the State Bar or in the contempt trial. The author never explained this
curious editorial decision, either in the book itself or in his myriad post-publication
interviews. Indeed, to the best of my knowledge, he never was asked, in any
interview, why he deliberately did not solicit interviews from such key figures
in the case.

In this manner, Cohan imitated the conduct of his book’s
protagonist, when Nifong notoriously refused to speak with multiple groups of
defense attorneys before the indictments. This approach was one of the many
ways in which the line between Cohan and the disgraced prosecutor blurred to such
an extent as to be almost invisible.

Second: consider one element from Cohan’s presentation of the
ethics hearing, courtesy of the “honorable” and “quite credible” Mike Nifong. Discussing
Reade Seligmann’s testimony during the proceedings, Cohan wrote the following,
mostly consisting of quotes from his interviews with Nifong (p. 554):

“‘They [the State Bar prosecutors] were very surprised to
find that Reade Seligmann came across very well, even though some of what he
said might not have been true. And actually, he did come across very well . . .
. [ellipsis in original] Not
everything he said was true, but he did come across very well.’ Nifong was
reluctant to specify what exactly Seligmann had said in his testimony that wasn’t
true. ‘Some of the things that he said about the party, we had other things to
show otherwise,’ [Nifong] continued. ‘There’s no point in getting into any of
that. I’ve already talked to you [Cohan] about how his actions after the party
indicated that in leaving he showed that he knew that there was something about
that that he had to distance himself from. There were some other things that I pointed
out that he said, about [how] [brackets in
original] he was going to get married, which, of course, is exactly what Crystal
Mangum said about the person she identified as Seligmann.’”

In the critiques of Cohan book, this passage hasn’t received
much attention, presumably because the allegations are bizarre even for
the reality-challenged Nifong. But the passage is revealing about the deeply
troubling editorial standards that Cohan employed in his book, which Scribner’s
editorial and legal staff tolerated.

In this passage, Cohan allows Nifong, unchallenged, to make
three points:

(1) The State Bar prosecutors were “very surprised to find
that Reade Seligmann came across very well”;

(2) Seligmann committed perjury on the stand during the
proceedings, regarding “some of the things that he said about the party”;

(3) At some point in the case, Seligmann “said” something “about
[how] he was going to get married.”

The first claim is based on Cohan’s inexplicable strategy of
attempting to glean the State Bar prosecutors’ legal strategy not by
interviewing them, or by interviewing their witnesses, but instead by
interviewing the defendant in the case, Mike Nifong.

State Bar prosecutor Doug Brocker (to whom Cohan did not
speak) confirmed to me that the Bar prosecution team was not in any way surprised by
Seligmann coming across well. No sentient person could have been “surprised”
that Seligmann came across well—his coming across well had been a major theme
of the case by this time.

It remains unclear why Cohan printed something that he must
have known was untrue. It also remains unclear why Cohan apparently made no
attempt to verify Nifong’s counterintuitive assertion with the Bar prosecutors before
including it, unchallenged, in what Scribner’s has termed the “definitive”
account of the book.

The second item in the passage raises even more serious concerns
about Cohan’s integrity. Could it possibly be that Nifong and his attorneys
knew that a powerful witness against them had lied on the stand, and yet
elected not to confront him with this information at the hearing? What possible
rationale could they have had for such a course?

They had, naturally, no such rationale, because Seligmann
didn’t lie on the stand. Indeed, on the stand, his only discussion regarding “things . . .
about the party” involved material related to his alibi, as previously presented both in a defense motion and then to the special prosecutors, and verified through electronic evidence along with the statements of two other people. As
with the first false statement in this passage, I confirmed with Doug Brocker
that the Seligmann testimony contained nothing untruthful.

In this instance, however, Cohan wouldn’t have needed to
have interviewed Brocker to have discovered that Nifong was lying. While Cohan didn’t
attend Nifong’s disciplinary hearing, on page 619 of the book, he did imply that
he watched the video of it: “There is also a treasure-trove of contemporaneous video
recordings—from WRAL-TV in Raleigh—of events and press conferences as they
unfolded.” At the least, he was aware that a video of Seligmann’s testimony
existed. That video is embedded below.

Given the video’s contents, there are only two explanations
for the second element of the passage above:

(1) Cohan unknowingly printed Nifong’s false allegation that
Seligmann hadn’t told the truth on the stand. Cohan did so because he elected not to take one hour to investigate Nifong’s claim—even though he
understood that his book’s chief source (Nifong) is a convicted liar.

(2) Cohan had, in fact, viewed the video of Seligmann’s
testimony, and therefore knew that Nifong’s assertion was false. But—blinded by
his partisanship for Nifong, his disdain for the falsely accused students, or
some combination of the two sentiments—he printed the allegation anyway.

Either explanation would—at the very least—demand that
Scribner’s issue a public retraction of this section of the Cohan book.

And then there’s the third section of the passage, in which Nifong
reminisces that Seligmann had said “he was going to get married, which, of
course, is exactly what Crystal Mangum said about the person she identified as
Seligmann.”

The inclusion of this item, unchallenged, is nothing short of extraordinary. At no point in the case
did Seligmann ever say something to the effect that “he was going to get
married”—because, of course, in 2006 he wasn’t “going to get married.” He didn’t
say anything to this effect in the Bar testimony, as Cohan could have confirmed
if he had looked at the video of Seligmann’s testimony. Seligmann also didn’t
say anything to this effect in any interview he gave on the case, or in any
available document from the discovery file (which Cohan, despite his
self-described credentials as an “investigative reporter,” seems not to have
obtained).

(1) Cohan didn’t know the allegation was false, because he elected not to take one hour to confirm the veracity of Nifong’s claim, and
because the book’s reporting limitations had denied him access to case-related
documents that likewise had no substantiation for Nifong’s assertion.

(2) Cohan, in fact, knew that Nifong’s assertion that
Seligmann said something about getting married was false. But—blinded by his
partisanship for Nifong or his disdain for the falsely accused students or some
combination of the two sentiments—he printed the allegation anyway.

Either explanation would—at the very least—demand that
Scribner’s issue a public retraction of this section of the Cohan book.

Cohan’s willingness to publish serious allegations that he
either knew were false or would have recognized as false with a minimum of
reporting speaks volumes as to his goals in producing the allegedly “definitive”
account of the case.

Monday, June 16, 2014

I have a piece
over at Minding the Campus on the issue of accountability, in this instance regarding the approach of the
commentariat to the current war on campus due process.

One of the people I looked at was retired Penn anthropology
professor (specialist in Women's Studies, Southeast
Asia, Anthropology of Gender, Multiculturalism, Sexual Culture, Public Interest
Ethnography/Anthropology) Peggy Reeves Sanday, whose final book,
published in 2007, was an updated version of her earlier Fraternity Gang Rape.

NYU
Press blurbed the book in the
following manner: “Sanday
updates the incidences of fraternity gang rape on college campuses today,
highlighting such recent cases as that of Duke University and others in the
headlines.” Of course, there was no “gang rape” in the lacrosse case, and the
lacrosse players weren’t part of a fraternity. Otherwise, Sanday seemed right
on target.

As part
of a Cohan-esque book tour, Sanday defended her work with a March 2007 column
placing the “Duke case in perspective”—in which she
proclaimed that she would not address “whether a sexual
assault took place at the party” or “whether the district attorney botched the
investigation.” Nonetheless, she deemed it “noteworthy that the sexual offense and kidnapping counts have not yet
been dropped.” Of course, one month later, the charges were not only dropped
but the falsely accused were declared innocent.

In the book itself, Reeves
Sanday offered
the following . . . analysis . . . of the case: “one can only imagine” that
the goal of the lacrosse players’ party was to create an event that “actively
promotes if not abets non-consensual sexual behavior.” (p. 202) It’s not clear
why Reeves Sanday based an item in what was an academic publication on her
imagination.

Why bring these items up now?
As many DIW readers know, we’re in the midst of a high-profile public debate
about whether due process for students accused of sexual assault should be
eroded. (To my dismay, the Obama administration and a coalition of “activists” have pushed
strongly for weakening due process protections.) The move has also attracted support
from politically correct journalists, such as NPR blogger Barbara King. In
a postcelebrating a California bill requiring students to
obtain (and, presumably, find a way to record) “affirmative consent” any
intercourse, King cited—of all people—Sanday. The Duke “expert” affirmed rejoiced
that the California bill would help “to make campus sexual cultures more equitable and
by so doing change the broader understanding of the meaning of sexual equality.”

Continuing
the pattern of praising a book that doesn’t exist (seen in the
Economist and Newsday reviews, in particular), Storin gushes that Cohan “interviewed
so many of the key people, and so well, that it is mostly captivating.”
Among the “key people” that Cohan didn’t try
to interview: the major defense attorneys; the State Bar prosecutors;
Nifong’s primary campaign manager; the judge; the
DHC chairman and panel; the special prosecutors in the criminal contempt trial;
and the senior prosecutors in the AG’s office who oversaw the office’s investigation.
Indeed, as I’ve noted previously, Cohan appears to have interviewed only five
people (Mike Nifong, Nifong’s attorney, Crystal Mangum, Bob Steel, and Ryan
McFadyen) for the book.

Why Storin considers this meager list to constitute
interviewing “so many of the key people” in the case he doesn’t say. Nor does
he reveal why he considers Cohan’s penchant for virtually
never challenging Nifong’s assertions to exemplify a reporter interviewing “so
well.”

I grew up reading the Globe;
I don’t recall the paperregularly
covering criminal justice issues through its reporters not even trying to interview the defense attorneys, as Cohan did in the
sections of the book dealing with the criminal case in 2006, or the prosecutors,
as occurred in the book’s coverage of Nifong’s ethics and criminal contempt
proceedings. Storin doesn’t explain in his review why he held Cohan to a lower
standard than that expected from first-year Globe
reporters.

Storin also came away from the book concluding that “you
probably have to give a nod to the defense attorneys.” Those would the
same defense attorneys who Cohan didn’t try to interview and who he recently
claimed (without presenting any substantiation) want to see Nifong “literally
dead in the ground.”

Storin praises Cohan (who, again, didn’t try to speak to
more than a dozen “key” players who tangled with book protagonist Nifong in the
courtroom) for reporting “meticulously and fairly about the whole sorry episode.”
That would be the same Cohan whose “something happened” thesis depends on
police investigator
Ben Himan lying about the AG’s evidence, coupled with a wide-ranging
conspiracy of the defense attorneys, the Bar, the AG’s office, and
unidentified Northeastern money to prevent the truth from coming out. And, of course, the same Cohan whose . . .

meticulous . . . research uncovered no new evidence about the criminal case, other than Mangum’s false assertions about wooden shards and who carried her to the car.

In the end, Storin rejects the book’s basic thesis when he
describes the lacrosse players as “falsely accused.” He doesn’t say if he agrees
with Cohan that Nifong, a “quite
credible” and “honorable”
man, was “crucified.”
Perhaps that’s the type of meticulous analysis that Storin found so appealing.

Monday, June 09, 2014

Author William D. Cohan recently departed a columnist’s position at Bloomberg View for one at Huffington
Post (which generally does not pay its columnists). Cohan then used his first HuffPost piece to lash
out at the free speech rights of his critics.

Huffington Post also
provided
what likely will be Cohan’s final promotional appearance for his book. As
with each of his interviewers other than WUNC’s Frank Stasio, the HuffPost Live asked no meaningful
questions about Cohan’s revisionist thesis. Cohan, even so, came across as
noticeably more ill-tempered than in his initial interviews about the book; at
times, he seemed almost unhinged when talking about his critics and
(especially) the defense attorneys.

Cohan, Unhinged

Cohan was asked who had suffered the most in the case. The
answer supplied by the passionate Nifong apologist would come as little
surprise. But then the author seemed to lose touch with reality.

COHAN at 13.30: “So you ask who, who came out the worst in all of
this, who suffered the most: I think, obviously, Mike Nifong, the prosecutor,
suffered the most. He’s the only one who spent any time in jail, he spent a day
in jail. He lost his job, he was disbarred as a lawyer. He filed for personal
bankruptcy. I mean, there are—of course, the defense attorneys would say, ‘That’s
not good enough for him, that’s too good for him, and he should be, you know .
. .’ They won’t be happy until he’s literally dead in the ground. And they’re
doing everything they can to try to put him there!”

Incredibly, the HuffPost
host made no comment, no request for substantiation, as her guest made this
wild assertion.

Since the criminal contempt trial, the defense attorneys
have had no dealings with Nifong. The idea that they’re “doing everything they
can” now to place him “literally dead in the ground” is nothing short of
bizarre.

It should go without saying that while Cohan offers such a
crazy claim, he never even tried to interview any of the attorneys he now
claims want Nifong “literally dead.” So how he reached this determination about
their thoughts must remain a mystery.

Seligmann, Finnerty, and the Party

Early in the interview, Cohan offered what appears to be a new description of the
party.

COHAN at 1.53: “In this situation, you had three students, accused of sexual
assault, and rape, after all day of
partying, and drinking, when they thought it would be a great idea to
invite strippers to their house, off
campus.” [emphases added]

By this point, it’s beyond clear that Cohan simply doesn’t
know very much about the topic on which he wrote. But could he actually now
have come to believe that Reade
Seligmann and Collin Finnerty lived with the three captains? That they were at
the house “all day” during the day of the party? That strippers were invited to
“their” house? His statement makes no sense otherwise.

The Nifong Apologist

The host asked, without providing specifics, if Cohan had a response to criticisms that the book sought to rehabilitate Nifong:

COHAN at 3.06: “I really find it humorous [at this stage in the video, Cohan looks
anything but amused] and counterintuitive . . . To be criticized for
talking to one of the principal players in this drama, no pun intended, the
prosecutor, Mike Nifong, who brought this action, [voice rising] to be criticized for actually giving him a chance to
tell his story, by other journalists who criticize me—many other journalists [voice rising again] have criticized me
for allowing Mike Nifong to have a microphone!”

Given that a bit later in the interview, Cohan would lament
Nifong’s suffering, present him as the major victim in the case, and wildly
claim that defense attorneys were trying to leave him “literally dead in the
ground,” the denial about his status as a Nifong apologist rings a bit hollow.

Nothing Cohan has said or done at any point in his publicity
tour has refuted this criticism.

Math Lessons from William D. Cohan

COHAN at 4.00: “So you’ve got a 620-page book, 600 pages of which
are incredibly critical of everything Mike Nifong did along the way, and 20
pages of it are Mike Nifong explaining why he did what he did, and also to some
extent admitting many of the things his critics ascribe to him, and basically
saying if he could have done it differently, he probably would have, and yet
also defending many of his actions!

”

I addressed this very
strange argument previously. At this point, Cohan’s repeating the assertion
suggests either that he hasn’t read his own book or he possesses an almost
casual willingness to make demonstrably false statements.

Cohan and His Enemies

COHAN at 4.22: [increasingly
passionate as he proceeds] To somehow ascribe to me motives, as if I were
trying to rewrite this story [recoils, as
if horrified], or to give Mike Nifong a platform he doesn’t deserve, to me
is so ridiculous, and so absurd, that I was absolutely—I wasn’t shocked by it, but
I couldn’t believe that people who consider themselves to be professional,
responsible journalists today, and who have gotten space in some of our most
well-respected publications like the New
Republic [Stuart], and Commentary [me],
and the Wall Street Journal [Dorothy
Rabinowitz], to make their, you know, vitriolic cases against me. One of
their main criticisms would be that I gave air time to Mike Nifong and Crystal
Mangum, two of the principal uh, uh, actors in this drama, is patently absurd.

”

Cohan has already made clear that whether his critics
deserve free-speech protections is an open question. The criticism that Cohan
gave “air time” to Nifong and Mangum appeared nowhere in any of the reviews
that Cohan mentioned.

Notice that amidst his self-professed horror, Cohan nowhere in
the interview addresses the actual criticisms of his book. At this point, I
think it’s fair to say that his silence regarding the substantive critiques
speaks volumes.

Proper Procedures for Prosecutors

The host clearly knew very little about the case. But she
did know that Nifong was disbarred, and six minutes into the interview, she
tried to get Cohan to explain precisely what Nifong did. The guest wasn’t
interested.

COHAN at 5.51: “[Nifong] was disbarred by the State Bar, . . . then he was found in contempt of court and spent that 24 hours in jail . . . all for doing what prosecutors are supposed to do: which
is, if they believe a crime was committed . . . You know, and prosecutors can
believe a crime is committed for any number of different reasons—they believe
the witness, they believe the police investigation, they looked at, you know,
the documentary evidence and the DNA evidence, they talked to the nurse that
examined Crystal Mangum on the night this supposed, uh, felony was committed.
For whatever reasons that he believed a crime was committed, his job as a
prosecutor is to take that evidence . . . forth into a trial.”

It’s terrifying that Cohan believes that a prosecutor who
lies to a judge, withholds exculpatory evidence, violates ethical guidelines
regarding public statements amidst an election campaign, and orders the police
to run a photo array that violates their own guidelines was just “doing what
prosecutors are supposed to do.”

Beyond that point, take a look at the remainder of Cohan’s
statements and apply it to this case. Nifong first made his public statements
that he had come to “believe a crime was committed” early in the afternoon of
27 March 2006. At that point, he hadn’t spoken to the witness, the police
investigation had uncovered nothing, he hadn’t looked at the documentary
evidence, there was no DNA evidence, and he hadn’t talked to the nurse that
examined Crystal Mangum on the night this supposed felony was committed.

But don’t take my word for it. Here’s Cohan’s protagonist,
Mike Nifong, admitting as much during the ethics hearing.

So is it Cohan’s conclusion that a prosecutor can “believe”
a crime occurred, and thus take a case to trial, for any reason at all?

The Nifong Record

COHAN at 6.58: “Well, this was a situation in which this
prosecutor was not allowed to bring
this evidence to a trial. By the way, this was a guy who had been in the Durham
DA’s office for 28 years, and before this he was generally thoroughly
well-regarded as a very strong prosecutor . . .”

At no point in a 15-minute interview did Cohan ever say that
Mike Nifong made ethically improper public statements in the hopes of
bolstering his election campaign, or that Mike Nifong improperly withheld
exculpatory DNA evidence, or that Mike Nifong lied in open court to a judge.
Instead, he said that Nifong made unspecified “mistakes.”

Enemies of the “Truth”

COHAN at 8.57: “I dug up as much as I could that raised some
serious questions about what happened. Of course, any time you say this,
there’s an established narrative out there—there’s an established narrative out
there that the people are very, very wedded to (the parents of the kids, the
kids themselves [he’s describing here people in their late 20s or early 30s],
their attorneys, and their powerful allies in the media) who don’t want anybody
bringing this up, and would go to whatever length they could—for them, this is
a war. This is a war that began in 2006, and it’s going to continue until, uh,
you know, until it can’t continue anymore. Until all the principal people are
no longer alive! And by me taking an objective look at what happened, seven or
eight years after it happened, it apparently, you know, something that they’re
having a real trouble dealing with.”

Cohan might, at some point, want to consult a dictionary to
determine the meaning of “objective.”

That said, consider the oddity of Cohan’s first sentence. With
regards to the criminal case, the only thing that Cohan “dug up” was the
revelation that as his ethical misdeeds were exposed, Nifong
confined his reading to the New York
Times. None of his lengthy
interviews with Nifong brought any new facts about the criminal case. His
shorter jailhouse chat with murderess Crystal Mangum did dig up two new items,
but both (that medical personnel had to remove wooden shards from her, that
Reade Seligmann carried her to the car) were demonstrably false.

Has Cohan now conceded that all that his book “dug up” about
the criminal case was precisely . . . nothing?

Media Expert

COHAN at 3.20: “The job of the investigative reporter is to go
back to Ground Zero of the story, accumulate all the information that he
possibly can, all the documentary evidence, and talk to as many people as
possible who would talk to him.”

Author Cohan fulfilled the task of seeking to “talk to as many
people as possible who would talk to him” by not seeking to
talk to (among many others): any of the defense attorneys, any of the senior
prosecutors in the AG’s office, the Bar prosecutors, Nifong’s primary campaign
manager, the DHC chair and members, Judge Smith, the criminal contempt
prosecutor, and (it appears) 43 of the 44 unindicted members of the 2006 lacrosse
team.

It would seem, therefore, that Cohan failed the “job of the
investigative reporter,” at least as he defines it.

“Rush to Judgment”

The host—who at several points in the interview seemed a bit
startled by the passion that Cohan brought both to his defense of Nifong and to
his attack on the falsely accused players—noted that from the standpoint of the
falsely accused, there was a rush to judgment. Cohan responded:

COHAN at 12.17: “Everybody rushed to judgment, including the
prosecutor, Mike Nifong. But he did, you know, believe that a rape had
occurred, and he was going to make it his duty to bring it to a court of law,
which is his job, to either prove it or not prove it.

”

If it’s possible to get beyond Cohan’s claim that the
defense attorneys want Nifong “literally dead,” this was clearly the oddest
statement of the interview. If, as Cohan now admits, Nifong “rushed to
judgment,” how, possibly, could it have been proper for him to have sought
charges based on his rush to judgment? That question, unsurprisingly, was one
that Cohan showed no interest in answering.

Contempt for the Falsely
Accused

COHAN at 12.36: “Uh, you know, the kids, from their point of view—I
mean, people are accused of crimes, you know, all the time. Uh, either they did
them, or they didn’t do them. Either they could be proved in a court of law
they did them, or they didn’t do them, and you know, there are plenty of cases
where there are people who are wrongfully convicted [like Darryl Howard], who spend, you
know, 18, 20 years in prison [like Darryl Howard], and get out
based on new evidence, or new DNA evidence [like Darryl Howard], and they get,
you know, whatever, $20,000 a year for their pain and suffering. I mean, these
three kids didn’t spend a day in jail, there was no trial, and they ended up
with $20 million each. [No, they didn’t.] This party cost
Duke $100 million, all told, with legal fees and settlements, etc.” [No, it didn’t.]

The Attorney General

COHAN at 8.35: “There was a secret investigation done by the state
attorney general [no criminal investigation in North Carolina is conducted in the open], who declared them innocent
at the end of that 4-month investigation, and he won’t be interviewed about
it [untrue: Roy Cooper did a press
conference, and then was interviewed by Lesley Stahl], and he won’t allow
his investigatory filed to be viewed [because it’s the law] . . .

”

COHAN at 14.01: “We’ll never know what really happened . . . The
State AG won’t open his investigatory files. I have sued in North Carolina to
force him to open those files. I’m sure I’ll lose, and he won’t have to.

”

I hope that representatives of the North Carolina
attorney general’s office take notice of this comment, which essentially
features plaintiff Cohan admitting that he has filed a frivolous lawsuit.

Cohan’s Publicity Tour Is (Literally) Cut Off

COHAN at 14.22: “This is just sort of one of those incredible
anomalies of justice that’s occurred in our society, that if you even have the
temerity to talk about it, you get, you know, eviscerated by—

”

At that point, the host appeared to have had enough with Cohan’s pity
party, cut the author off, and ended the interview.

Due Process and False Charges

Cohan also offered his typically bizarre interpretation of
the legal system, suggesting that even though the prosecutors from the AG’s
office and the defense attorneys both believed the players were innocent, they
nonetheless should have faced a trial:

COHAN at 7.12: “In our system of jurisprudence, the prosecutor
brings cases before the jury, the people decide whether he’s right or he’s
wrong, the people are not guilty or guilty, and that’s the way the system
works. Here was a case—whether these kids were not guilty or guilty, they were
ultimately declared innocent by the state attorney general. Our justice system
was subverted in this case. And I think that is the most profound uh, uh action
to come out of this whole incident. That our system of justice was subverted by
very clever, deep-pocketed defense attorneys who exploited every mistake that
the prosecution made and that the principal witness made.

”

A good response to this basic misunderstanding of our legal
system came from one of these “deep-pocketed defense attorneys,” Brad Bannon,
during the Nifong ethics hearing:

Needless to say, this was another section of Bannon’s
testimony that never
found its way into Cohan’s book.

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About Me

I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review